Judical review is an essential component of a fair and reasonable system of agency adjudication,and no more is this true than in the context of the proposed comprehensive immigration reform provisions that would afford lawful status to the some 11 million undocumented students, family members, relatives, neighbors, employees, employers, armed forces personnel, and other members of the U.S. community.
The judicial review provisions in S.744 include a mechanism for review of individual denials in district court or the court of appeals under the Administrative Procedures Act ("APA") standards. In addition, the bill provides for full review of pattern and practice violations and class action litigation in the district court, a mechanism that proved to be quite important in guaranteeing the legalization rights were observed and honored under the Immigration Reform and Control Act (IRCA, 1986).
What is Grassley 17?
The Grassley 17 amendment is a misguided effort on the Senator's part to curtail and deny access to such judicial review for individual beneficiaries of the provisions of S. 744, as well as to eliminate the possibility of review of practices that have a broader impact on the program overall.
Specifically, the Grassley 17 amendment would severely restrict review, providing only:
1) review in the district court in DC and in no other district court, and
2) review over challenges to the constitutionality of sections of the program and implementing regulations.
In short, Grassley 17 would eliminate all judicial review of decisions relating to RPI and adjustment of status applications, including those relating to Dreamers, agricultural workers, and the spouses and children of all these individuals -- other than where the litigation would be brought for the purpose of challenging the constitutionality of the statute or the regulations.
Why Is Judicial Review Necessary?
Judicial review is critical to any fair and reasoned implementation and enforcement of statutory provisions. In the case of the new provisions included in S.744, the RPI, Dream, and AgJobs classifications require the agency to assess applications and evaluate eligibility using new terms and new standards. In implementaing new programs such as these, oversights, miswunderstandings and, let's be frank, mistakes are inevitable.
According to Grassley 17, if adopted, there will be no way to address an executive branch regulation, policy or practice that erroneously denies thousands of eligible people legalization. Gutting judicial review from S. 744 means that there would be no way to correct such errors, even if the regulation, policy or practice was manifestly inconsistent with the terms of the legalization provisions created by Congress. Without judicial review, Congress's intent could be thwarted.
It is never wise allow an agency employee unfettered adjudicative authority to render a decision that can have such a drastic effect on the future of any individual, let alone 11 million. Gutting judicial review places far too much unchecked power in the hands of a single agency employee, or at the middle management level. A single error by a single agency employee will destroy the once in a life-time opportunity that Congress has chosen to make available to the individual.
By restricting judicial review to the DC district court only, Grassley 17 would be highly unfair to RPI applicants who are unable to travel to DC. Undoubtedly, hundreds or thousands would forego judicial review, an outcome that no democratic, fairminded legislator should encourage or desire. Moreover, as long as the DC District Court says a provision or regulation is constitutional, an individual can be deported even if the legalization denial was blatantly wrong under the standards created by Congress.
This is an untenable proposal by Senator Grassley. As the ACLU reminds us, In our justice system, it would be unprecedented to bar judicial review of administrative agencies' decisions involving individual interests of this magnitude. Grassley 17 itself would be unconstitutional because it wouldn't provide review over non-constitutional legal claims or even non-systemic constitutional claims, as required by US v. St Cyr and other Supreme Court cases.
Stay tuned for more discussion on the judicial review provisions in S.744, right here, where appeal matters.
* Appreciation to the ACLU for their analysis and comments in opposition to the Grassley 17.